Sutton v. . Sutton

77 S.E. 838, 161 N.C. 665, 1913 N.C. LEXIS 297

• Court: Supreme Court of North Carolina
• Decided: April 2, 1913
• Status: Published

Opinion

Walker, T.

As the facts are in dispute, the court properly continued the injunction . to the hearing (Stancill v. Joyner, 159 N. C., 617; Cobb v. Clegg, 137 N. C., 153; Hyatt v. DeHart, 140 N. C., 270), as it appears in this case that the commission of the threatened acts of defendant would produce injury to the plaintiff pending the litigation, and that the trespass by the defendant would be continuous, and that the restraint of the said acts is, at least, a part of the relief sought in the action. Revisal, secs. 806 and 807; Lumber Co. v. Cedar Works, 158 N. C., 161; Foster v. Carrier, ante, 472. But we do not see how the defendant will be materially prejudiced by the order, as the court expressly required plaintiff to pay his share of the debts and liabilities of the decedent, and reserved the right to proceed against the plaintiff for a sale of the land by petition, as allowed by law, if it should become necessary to sell the land for the payment of debts against the estate. What more could he ask for? His hands are not tied, but set free, so that he may proceed to do practically all that, as he alleges, the testator instructed him to do when she deposited the deeds with him. We do not pass upon the merits of the case, as the jury may find, or it may be otherwise determined, that plaintiff is entitled, unconditionally, to the possession of the deed she made to him, and the merits are not now otherwise directly involved. Our decision is, therefore, confined to the correctness of the judge’s order, in which no error is found.

No error.